Adultery and Child Custody: What You Should Know

adultery and child custody

Adultery, also known as infidelity, is a common reason for divorce.

While adultery can have a significant impact on the emotional and financial aspects of a divorce, many people are curious about the impact on child custody.

Is adultery a factor in determining who gets custody of the children? Before we delve into the specifics, let us first define adultery.

What Exactly Is Adultery

Adultery is defined as a married person engaging in sexual intercourse with someone other than their spouse.

It is important to note that adultery is not a criminal offence.

What Effects Adultery Has on Child Custody

In child custody cases, adultery is not a factor that is considered. The Family Law Act 1975, which governs family law in Australia, specifically states that “the court shall regard the best interests of the child as the paramount consideration.”

This means that when deciding who gets custody of the children, the court will consider a wide range of factors, including:

  • The child’s relationship with each of his or her parents;
  • The ability of each parent to care for the child;
  • The willingness of each parent to facilitate a relationship between the child and the other parent;
  • The wishes of the child, if they are old and mature enough to express them;
  • Any family violence or abuse, as well as the consequences for the child.

Also read: How to Determine Child Custody Percentage

How Adultery Has No Impact on Child Custody

It should be noted that adultery does not automatically disqualify a parent from receiving custody of the children.

The Family Law Act is gender-neutral and does not penalize any type of behaviour, including adultery.

Furthermore, because adultery is not a criminal offence, the court cannot punish a parent for it.

If a parent’s adultery has not had a negative impact on the child or their ability to parent effectively, the court’s decision is unlikely to be influenced by it.


The court will always consider what is best for the child and will base its decision on a variety of significant factors.

If you are going through a divorce and have questions about child custody, you should consult with child custody lawyer who can give you advice tailored to your specific situation.

Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.

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